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Pinhas Ezekil Silas Vs. Sally Pinhas Silas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberM.J. Suit No. 2117 of 1981
Judge
Reported inAIR1983Bom263
ActsIndian Divorce Act
AppellantPinhas Ezekil Silas
RespondentSally Pinhas Silas
Advocates:D.R. Zaiwala, Adv.
Excerpt:
the case debated whether the high court had jurisdiction in the matrimonial disputes between the jews wherein the defendant wife deserted the plaintiff for over two years - it was held that the high court had jurisdiction and could pass a decree absolute in the favour of the plaintiff. - - ' when there is no statute applicable here the letters patent require maintenance to decide according to 'justice equity and good conscience' which has long been held,,in general, to mean 'english law so far as it is applicable to the conditions of life in india......the question which i have to consider in this suit is whether this court has jurisdiction to pass decree of divorce where the parties professed jewish religion. this question was considered by this court in the case benjamin v. benjamin reported in : air1926bom169 , wherein crump j. observed :--'here the parties are jews and the question is whether clause 12 of the letters patent gives this court jurisdiction to entertain a suit arising out of matrimonial disputes between jews. .. ... .... ... it follows that nothing was there decided which is in any way relevant to the question now before maintenance. i reach this conclusion the more readily as it avoids the position which the privy council deprecated so strongly in adraseer cursetjee v. perozeboye,* when their lordships said:.....
Judgment:

1. This is a suit filed by a husband against his wife, both practising Jewish Religion, praying for a Decree for divorce of their marriage. In the alternative, the plaintiff-husband has prayed for judicial separation against the defendant. Thirdly, the plaintiff-husband has prayed for the custody of the minor daughter Michelle and lastly, for costs of the suit.

2. The suit was called out for hearing and final disposal today, when the plaintiff was represented by his Advocate. the defendant has remained absent. The Affidavit of Service has been marked as Exhibit 'A'. A copy of the letter of the Superintendent of Post Offices, Bombay City South Division. addressed to the Sheriff of Bombay has been marked as Exhibit 'B'.

3. The plaintiff has examined himself. In his evidence he has deposed that he and the defendant both practiced Jewish Religion and that he was domiciled in India. He has stated that he was married to the defendant on 24th May, 1972 at the Jewish Synagogue. Byculla, Bombay , according to Jewish Rites and Ceremonies. The plaintiff has produced the certificate of marriage issued by the Synagogue, which has been tendered and marked Exhibit 'C'.

4. After the marriage, the parties resided at Simla House, Napean Sea Road, Bombay . There is one issue of the said marriage, a daughter named Michelle born in Bombay on 20th August, 1973.

5. The plaintiff stated that after the marriage, the defendant without any reasonable cause and without his consent left Bombay and went to reside with her parents in Israel and since then the parties had not cohabited or resided together.

6. The plaintiff stated that sometime later he followed the defendant to Israel. The plaintiff met the defendant when the defendant told him that she did not wish to continue living with him as his wife and that she intended to reside with her parents in Israel. The plaintiff thereafter obtained a decree for divorce against the defendant in the Jewish Religious Court. The plaintiff has produced the decree of divorce together with the translation thereof, which has been marked as Exhibit 'D'. The plaintiff stated that there was no collusion between him and the defendant in respect of the subject matter of the suit. The plaintiff stated that the defendant had deserted him for a period of over two years and, therefore, prayed for a decree for divorce.

7. The question which I have to consider in this suit is whether this Court has jurisdiction to pass Decree of Divorce where the parties professed Jewish Religion. This question was considered by this Court in the case Benjamin v. Benjamin reported in : AIR1926Bom169 , wherein Crump J. observed :--

'Here the parties are Jews and the question is whether Clause 12 of the Letters Patent gives this Court jurisdiction to entertain a suit arising out of matrimonial disputes between Jews. .. ... .... ... It follows that nothing was there decided which is in any way relevant to the question now before maintenance. I reach this conclusion the more readily as it avoids the position which the Privy Council deprecated so strongly in Adraseer Cursetjee v. Perozeboye,* when their Lordships said: 'But we should much regret if there were no Courts and no law whereby a remedy could be administered to the evils which must be incidental to the married life amongst them.' Those words are as applicable to Jews as to litigants of any other persuasion, and, as I have endeavoured to show, CI. 12 of the Letters Patent was deliberately intended to remove the difficulty. I hold, therefore, that I have jurisdiction to entertain this suit, and that in deciding it the Jewish law must be applied 'with such adaptations to the circumstances of the case as justice may require .. ... .. .. ..' 'It would thus appear that under the Jewish law the plaintiff is entitled to a divorce, and it may be noted that the result would be the same under English Law as it now stands .'

8. The next question which must be decided in this case is whether I should make the decree absolute or in the first instance pass a decree nisi, since that is the practice under Indian Divorce Act. This question also came up for consideration in the case of Engel v. Engel reported in 45 Bom LR 921 : : AIR1944Bom15 wherein Blagden. J. observed:--

'The law which I am to apply must therefore, be the lex fori. But what is the lex fori? I ought to follow, by analogy, either the statute applicable here to English Christians and make a decree nisi, or the general law applicable to ordinary suits and grant the plaintiff absolutely the relief to which I am sure he is entitled. It was assumed, without argument, in Benjamin v. Benjamin that the former was correct, though for some reason Crump J. prescribed less than the usual period before the decree could be made absolute. No doubt there was some special reason for this, but it does not appear from the report. Nor, in any case, does it appear that the point, taken here by Mr. Forbes, that the latter view is view is correct, was ever argued before Crump J. I do not therefore think that I administration bound by this decision as to the form of relief.' 'When there is no statute applicable here the Letters Patent require maintenance to decide according to 'justice equity and good conscience' which has long been held,, in general, to mean 'English law so far as it is applicable to the conditions of life in India... ... ... .... .... ... ...'

'I think that Mr. Forbes, for the plaintiff, is right when he points out that I have no power by statute if, for example, a debt is proved before maintenance to pass a money judgment which is not to be enforceable unless for six months nobody shows cause against, it, and (since no statute provides for it) no power to make a decree nisi in this case. I am not enforced in this opinion by the practice of this Court in the case of Parsis since its duties are there laid down by statute: but I am powerfully enforced by the fact that a decree absolute is made at once in the case of Mahomedans. Moreover, I do not think that any irreparable injustice can results if I have been misled as to the facts, since if the plaintiff has presented a false case to the Court -- and I do not for a moment suggest that he has done so -- the defendant, even if the time fore appeal has passed, could always commence a suit to set aside my decree on that ground that it has been obtained by fraud.'

Blagden J. thereafter proceeded to pass a decree absolute in favour of the plaintiff.

9. In the instant case, the defendant-wife has deserted the plaintiff for a period of more than two years. since this Court his jurisdiction to pass a decree in favour of the plaintiff under Clause 12 of the Letters Patent, as laid down by the authorities cited above, I think that the plaintiff in this case is entitled to a decree from this Court for divorce against the defendant.

10. In the circumstances, there will be a decree for divorce dissolving the marriage between the plaintiff and the defendant Mr. Zaiwala does not press for the prayer for custody of the minor child. there will be no order with regard to prayer (c). There will be no order as to costs of this suit.

11. Order accordingly.


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